The pertinent facts are undisputed. The 2000 decennial census showed a
shift in Oregon's population that resulted in a malapportioned distribution among the
then-existing congressional districts. See ORS 188.135 (2001) (describing areas
encompassed within Oregon's congressional districts that were in effect as of
December 18, 1991). Consequently, the legislature undertook to redraw the
congressional districts. See ORS 188.010. (1) Predictably, the Democratic and
Republican parties offered contending solutions. Towards the end of the 2001 legislative
session, with Republicans constituting a majority of both the Senate and the House, the
legislature approved the Republican-sponsored plan, Senate Bill (SB) 500, on a strict
party-line vote. Then-Governor John Kitzhaber, a Democrat, vetoed SB 500. Unable to
override the veto, the legislature adjourned sine die, having failed to redraw the
congressional districts. That left the existing (1991) districts still in place.

In both actions, plaintiffs sought both declaratory relief and an injunction
prohibiting defendants from ordering or conducting future elections based on the
malapportioned districts. However, the parties differed as to the precise remedy. The
Perrin plaintiffs and intervenors urged the adoption of the Democratic plan, while the
Atkinson plaintiffs urged the adoption of SB 500. Central to that dispute were the criteria
prescribed in ORS 188.010. Defendants answered, conceding that the existing districts
were unconstitutional, but denying any violation of plaintiffs' constitutional or civil rights.
Defendants did not endorse either of the proposed plans or advocate any alternative
redistricting plan.

The trial court consolidated the cases for trial and heard two weeks of
testimony that focused almost exclusively on the question of how the districts should be
redrawn. In early November 2001, the court entered a judgment that (1) declared that the
1991 districts were unconstitutional; (2) permanently enjoined defendants from
conducting future congressional elections based on those districts; and (3) adopted the
Democratic plan advanced by the Perrin plaintiffs and intervenors, because that plan
"minimizes disruption of the existing congressional districts and better complies with the
statutory criteria of ORS 188.010." No party appealed from that judgment.

Later in November 2001, all plaintiffs and intervenors petitioned the court
for attorney fees, asserting that they had "prevailed" for purposes of section 1988. The
Perrin plaintiffs requested costs and attorney fees of $531,739.01; intervenors requested
$61,899.96; and the Atkinson plaintiffs requested $144,996.34.

The trial court denied all of the fee requests in their entirety. The court's
letter opinion began by addressing which of the parties had "prevailed" for purposes of
section 1988. The court noted that "[a]ll plaintiffs [and intervenors] claim to have
prevailed because the court granted the relief sought, namely, an injunction which
prohibited the defendants from conducting elections under the then-existing
malapportioned congressional districts." The court then stated, without amplification,
that the Perrin plaintiffs and intervenors had "prevailed in this litigation for the reason
that their plan was adopted by the court." Conversely, the trial court concluded that the
Atkinson plaintiffs had not "prevailed":

"In most cases in which this issue has been examined * * *, the
federal courts have been reluctant to confer prevailing party status on the
party whose plan is rejected by the court. After consideration of the cases
which have examined this issue, this court agrees with that reasoning. The
only real issue in this case was which of the two plans should be adopted by
the court. Under that analysis, the Perrin and Brown/Gardner plaintiffs
were the clear winners. While the evidence produced at trial by the
Atkinson plaintiffs was helpful to the court, it did not meet the statutory
criteria by which this court was guided in reaching its decision. For that
reason, this court cannot find that the Atkinson plaintiffs prevailed as that
term is generally understood and applied."

Notwithstanding its determination that the Perrin plaintiffs and intervenors
had prevailed, the trial court held that the "special circumstances" of this litigation
precluded any award of fees. The court acknowledged that the "federal circuit courts
* * * have uniformly held that congressional redistricting cases of this kind present no
special circumstances justifying the denial of attorney fees and costs." Nevertheless, the
trial court adopted, as persuasive, the reasoning of the dissenting opinion in Hastert v.
Illinois State Bd. of Election Com'rs, 28 F3d 1430, 1444 (7th Cir 1993), cert den, 513 US
964 (1994) (Coffey, J., dissenting). The trial court explained:

"This court disagrees with the reasoning of those courts and finds
that this purely political case does indeed fall within the special
circumstances exception to the general rule in favor of awarding attorney
fees. It was necessary to file this case only because the members of the
legislature, voting along straight party lines, failed to fulfill their
constitutionally-imposed duty to redraw congressional district lines
following the 2000 decennial census. No substantial rights were vindicated
by this litigation. This is, at its core, a turf war between the two well-funded major political parties. The litigation in this case vindicated
primarily their interests and those of the candidates who seek election in the
[disputed districts].

"Such interests, while understandable and arguably laudable, are not,
in this court's opinion, among those sought to be protected by Congress
when it enacted this voting rights legislation. [Section 1988's] goal of
inducing 'voluntary compliance with the law' was never at issue in this case.
The defendants acknowledged the need to redraw lines from the outset.
Unlike the voting rights case in which a suit is necessary to redress wrongs
perpetrated by those in a position of power against a disenfranchised group
of voters, this case was solely concerned with gaining and/or maintaining
political advantage to those who would represent the two major political
parties in Oregon's congressional delegation.

"The political parties are entitled to retain, as they did, top-flight
attorneys to present their evidence and arguments to the court in an effort to
achieve their political ends. They are not, however, entitled to pass along
that cost to the taxpayers. To deny the fee-shifting [that would result from
awarding] the plaintiffs attorney fees will serve the further goal of
encouraging those participating in the legislative process to accomplish the
task entrusted to them every ten years by the United States Constitution,
namely, redrawing the congressional districts. The political parties will be
provided an incentive to resolve political disagreements in the appropriate
forum: the legislature."

Accordingly, the trial court denied any recovery of costs and fees pursuant to section
1988.

The Atkinson plaintiffs contend that they prevailed for purposes of section
1988, notwithstanding the court's rejection of their proposed plan, because they obtained a
declaration that the existing districts were unconstitutionally malapportioned and an
injunction against conducting congressional elections until the districts were
redrawn. (3) Defendants counter that (1) they never disputed that the existing districts
were unconstitutionally malapportioned, so the Atkinson plaintiffs' success on that
question was, effectively, a foregone conclusion; and (2) the Atkinson plaintiffs lost on
what was, in fact, the only contested issue--and, indeed, the "winner-takes-all" impetus
for this litigation--the configuration of the redrawn districts.

"In any action or proceeding to enforce a provision of section * * *
1983 * * * of this title, * * * the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee as
part of the costs * * *."

But who (or what) is a "prevailing party" for purposes of section 1988?
That is, what are the legal requisites of "prevailing party" status? In Texas Teachers
Assn., the Court endorsed a "generous"--and arguably idiosyncratic--answer: A
"prevailing party" under section 1988 is one who has "succeeded on any significant claim
affording it some of the relief sought." 489 US at 791 (emphasis added).

In Texas Teachers Assn., the plaintiffs sued under section 1983, challenging
the constitutionality of the defendant school district's policy that denied the union's access
to teachers on campus during school hours, allowed such access only before or after
school and with principal approval, prohibited communications between teachers about
employee organizations during the school day, and prohibited teachers from using
intraschool communication systems for such discussions. On cross-motions for summary
judgment, the district court ruled against plaintiffs on almost every claim. The court did
find, however, that the prohibition against union meetings after school hours without
prior approval was unconstitutionally vague. 489 US at 786. On appeal, the Fifth Circuit
reversed in part, concluding, in addition, that the prohibitions on union-related
discussions among teachers during the school day and on teacher use of internal
communication systems for such discussions were also unconstitutional. Id. at 786. The
Supreme Court "summarily affirmed" the Fifth Circuit. Id. at 787.

The Supreme Court reversed. The Court first rejected the "central issue"
test because it impermissibly required courts to gauge "the subjective importance of an
issue to the litigants," 489 US at 791, and could not be reconciled with the broadly
remedial congressional intent underlying section 1988. Id. Instead, the Court endorsed a
more "generous formula," by which a party would be deemed to have "prevailed" if the
party obtained "a resolution of the dispute which changes the legal relationship between
itself and the defendant." Id. at 792. Thus, the Court shifted the "touchstone" of the
prevailing party inquiry from success on the "primary" issue, as viewed from the litigants'
subjective perspective, to whether there has been a "material alteration of the legal
relationship of the parties." Id. at 792-93.

One final aspect of Texas Teachers Assn. bears emphasis: The Court did
not hold that a party's success (or failure) on the "central" or "primary" issue was
immaterial for all fee-related purposes. Rather, that consideration pertains solely to the
reasonableness of the requested fees and "not to the availability of a fee award vel non."
Id.

In Farrar, the Court reiterated and refined its "prevailing party"
formulation. There, the plaintiffs sought $17 million in damages for an alleged civil
rights violation. After the jury found that the defendant had violated the plaintiffs' civil
rights, but was not the proximate cause of their alleged injuries, the trial court ultimately
entered a judgment against the defendant but awarded only nominal damages. Farrar,
506 US at 106-07. The plaintiffs then petitioned for attorney fees under section 1988.
The trial court awarded fees, but the Fifth Circuit, based on its understanding of Texas
Teachers Assn., reversed:

"'The Farrars sued for $17 million in money damages; the jury gave them
nothing. No money damages. No declaratory relief. No injunctive relief.
* * * The Farrars did succeed in securing a jury-finding that Hobby violated
their civil rights and a nominal award of one dollar. However, this finding
did not in any meaningful sense change the legal relationship between the
[parties]. Nor was the result a success for the Farrars on a significant issue
that achieved some of the benefit the [plaintiffs] sought in bringing suit.
When the sole relief sought is money damages, we fail to see how a party
prevails by winning one dollar out of the $17 million requested.'"

The Supreme Court affirmed the Fifth Circuit judgment because the only
reasonable fee, considering "the degree of success obtained" by the plaintiffs, was no fee.
506 US at 114-15. However, the Court held that the Fifth Circuit erred in "failing to
recognize that [the plaintiffs] were prevailing parties." Id. at 116. Specifically, the Court
clarified and amplified its observation in Texas Teachers Assn. that, "to qualify as a
prevailing party, a civil rights plaintiff must obtain at least some of the relief on the merits
of his claim." Id. at 111. Under that standard, even if a plaintiff unsuccessfully sought
substantial monetary damages but recovered only nominal damages, the plaintiff was,
nevertheless, a "prevailing party" because he "modifie[d] the defendant's behavior for the
plaintiff's benefit by forcing the defendant to pay an amount of money he otherwise
would not pay." Id. at 113. In sum, as the Court emphasized, "the prevailing party
inquiry does not turn on the magnitude of the relief obtained." Id. at 114.

Under the "prevailing party" standard prescribed in Texas Teachers Assn.,
Farrar, and Buckhannon, the Atkinson plaintiffs prevailed in this litigation. They did, in
fact, succeed on a significant claim in the litigation, pertaining to the unconstitutional
malapportionment of the existing districts, and they obtained a judgment granting them
"some of the relief sought." Texas Teachers Assn., 489 US at 791. Specifically, as noted,
the trial court here declared that the 1991 congressional districts were unconstitutional
and enjoined future elections based on those districts. See ___ Or App at ___ n 3 (slip op
at 7 n 3). That declaration and injunction effected a "material alteration of the legal
relationship of the parties." Texas Teachers Assn., 489 US at 792-93. To be sure, the
Atkinson plaintiffs failed to obtain the precise relief that they sought. But "the magnitude
of the relief obtained" is immaterial to the determination of prevailing party status.
Farrar, 506 US at 114.

Defendants argue, nevertheless, that we, like the trial court, should adopt
the analysis of the Seventh Circuit in Hastert, in which the court held that certain
plaintiffs whose circumstances were virtually identical to those of the Atkinson plaintiffs
had not prevailed in redistricting litigation. We decline to follow Hastert in that regard.

In Hastert, several groups of plaintiffs brought actions seeking the
redrawing of congressional districts after the Illinois legislature and governor were unable
to agree on a plan to correct malapportioned congressional districts. As in this case, one
group (the Hastert plaintiffs) advocated for the Republican-sponsored plan, and another
(the Rosebrook plaintiffs) urged the adoption of the Democratic-sponsored plan.
Ultimately, the district court adopted the Republican (Hastert) redistricting plan as better
satisfying constitutional and statutory criteria. Hastert, 28 F3d at 1435. Both groups of
plaintiffs sought attorney fees. The district court declined the awards, determining,
specifically, that the Hastert plaintiffs had prevailed, but should be denied fees under the
"special circumstances" exception. Id. at 1443.

The Seventh Circuit held that the Rosebrook plaintiffs had not prevailed:

In so holding, however, the court failed to persuasively address how that
result could be squared with the "prevailing party" standard prescribed in Texas Teachers
Assn. and Farrar. The Hastert majority did not even mention Farrar, and the court's
limited discussion of Texas Teachers Assn. was inconsistent with its observation that, in
redistricting cases,

"the winner, at least from a lay person's perspective, is the litigant whose
plan * * * the district court adopted. Conveniently, this common-sense
understanding of winners and losers coincides in large part with the
Supreme Court's definition of 'prevailing party.'"

Those decisions, and their underlying reasoning, correspond with and
corroborate our own understanding of the requirements of "prevailing party" status as
defined by Supreme Court precedent. We thus conclude that the trial court erred in
determining that the Atkinson plaintiffs did not "prevail."

The question remains, however, whether, notwithstanding their "prevailing
party" status, the parties here are subject to the "special circumstances" exception to
entitlement to fees under section 1988. See Hensley, 461 US at 429 (court "should
ordinarily" award attorney fees "unless special circumstances would render such an award
unjust" (internal quotations and citations omitted)).

Here, the trial court relied heavily on Judge Coffey's dissenting opinion in
Hastert in concluding that the "special circumstances" exception applied. See ___ Or
App at ___ (slip op at 5-6). That was so for several interrelated reasons: (1) This
litigation was necessitated only because members of the legislature, motivated by partisan
interests, were unwilling or unable to discharge their "constitutionally-imposed duty" to
redraw the malapportioned districts; (2) thus, the interests represented in this litigation
were, effectively, the same interests that were responsible for the failure to enact
redistricting legislation; (3) given that alignment and juxtaposition of interest, this case,
unlike many voting rights cases, was not maintained to vindicate the rights of "a
disenfranchised group of voters" but was, instead, "a turf war between the two well-funded major political parties" who were "solely concerned with gaining and/or
maintaining political advantage"; (4) because defendants had "acknowledged the need to
redraw lines from the outset," an award of fees here would not promote the statutory
policy of inducing compliance with the law; and (5) rather, an award of attorney fees
would merely shift the "cost to the taxpayers"--whereas a denial of fees would encourage
"those participating in the legislative process to accomplish the task entrusted to them."

We deeply appreciate the trial court's thoughtful analysis. Nevertheless,
with respect, we disagree.

In all events, the trial court's reasoning was predicated on several erroneous,
or ultimately immaterial, premises. First, it may well be true that plaintiffs were selfishly
motivated in bringing this action. But that hardly distinguishes this action from many,
probably most, section 1983 actions: Efforts to vindicate constitutionally protected rights
are often "selfishly" motivated. See, e.g., Farrar; Texas Teachers Assn. That the selfish
interests here were "partisan" in nature is immaterial.

Nor, as defendants suggest, were they merely "nominal" defendants--innocent bystanders to a political "turf war" "fought solely among the plaintiffs and
intervenors." That contention, which the trial court implicitly accepted, posits a
remarkable distinction between the State of Oregon and the Oregon Legislature--i.e., that
the state defendants would have corrected the unconstitutional malapportionment but for
the legislature's politically motivated failure to do its duty. That distinction--treating the
legislature as some sort of alien "other"--is legally and constitutionally unsupportable.
Beyond that, we are hard-pressed to understand how, or why, the conduct of legislators in
proposing, opposing, and approving redistricting legislation can, or should be, castigated
as being irresponsibly partisan without ascribing the same sort of "partisan blame" to the
defendant governor's veto of that legislation.

Ultimately, the exercise of examining the actors' motivations and ascribing
blame is illusory and self-defeating. Did Republican legislators, who held majorities in
both houses, "fail to fulfill their constitutional duty" when they proposed and adopted
redistricting legislation that the parties agree comported with constitutional requirements?
Did Democratic legislators (and the governor) similarly breach their constitutional
obligations when they opposed (and vetoed) that plan, adhering to their own redistricting
plan--a plan that not only met constitutional requirements but also, as the trial court
ultimately determined, better complied with the requirements of ORS 188.010? There
may well be plenty of "blame," or justification, for the 2001 redistricting deadlock. But,
given our constitutional role, we are loath to ascribe either.

Finally, we acknowledge, as defendants emphasize, that most of plaintiffs'
and intervenors' efforts here were devoted to litigating which of their proposed plans best
comported with the considerations prescribed in ORS 188.010(1). Defendants contend
that, given that focus, this dispute was, in the end, predominantly statutory and not
constitutional, precluding any entitlement to fees under section 1988. We disagree.
Constitutional right and remedy under section 1983 cannot be so easily divorced. Here,
meaningful vindication of plaintiffs' constitutional rights necessitated judicial intervention
and prescription of constitutionally apportioned districts comporting with ORS 188.010.
As the Perrin plaintiffs argue:

"As defendants see it, after they admitted that the then-existing
congressional districts violated the federal constitution, there was no need
to remedy the violation. Without this litigation, however, there would have
been no constitutional congressional plan under which Oregonians could
vote.

"* * * * *

"* * * Once the trial court found that the then-existing congressional
districts violated Article I, section 2, a remedy--a new plan--was necessary.
Because the political process had been unable to enact a constitutionally
permissible redistricting plan, the Perrin plaintiffs had to step in to remedy
the existing constitutional violation."

That was equally true of intervenors and the Atkinson plaintiffs. Significantly,
defendants took no position on remedy, essentially abdicating that role--and the task of
assisting the court in fashioning a lawful plan--to plaintiffs and intervenors.

We thus conclude that plaintiffs and intervenors are entitled to recover
attorney fees under section 1988. We remand for the trial court to determine the
reasonableness of those parties' requested fees, considering, inter alia, the parties' relative
degree of success and the extent to which their efforts assisted the court in identifying the
appropriate remedy. See, e.g., Texas Teachers Assn., 49 US at 792-93; Hensley, 461 US
at 430, 435-36; Johnson v. Georgia Highway Express, Inc., 488 F2d 714, 717-19 (5th Cir
1974).

"'We say once again what has been said on many occasions:
reapportionment is primarily the duty and responsibility of the
State through its legislature or other body, rather than of a federal
court.' Chapman v. Meier, 420 US 1, 27[, 95 S Ct 751, 42 L Ed 2d
766] (1975). Absent evidence that these state branches will fail
timely to perform that duty, a federal court must neither
affirmatively obstruct state reapportionment nor permit federal
litigation to be used to impede it."

This directive is one of "deferral, not abstention." Growe, 507 US at 37. Thus, although both
federal and state courts retain jurisdiction in redistricting cases, Growe dictates that, under
principles of federalism and comity, the states are to take a "primary" role. See Jensen v.
Wisconsin Elections Bd., 249 Wis 2d 706, 639 NW2d 537 (2002) (recognizing Growe's holding,
but denying petition to exercise original jurisdiction where doing so could cause conflicts with
pending federal court case and cause unnecessary delay in resolving redistricting problems);
Alexander v. Taylor, 51 P3d 1204 (Okla 2002) (reviewing history of judicial involvement in
redistricting cases and noting that, under Growe, the states, not federal courts, have the
responsibility to see that the right to constitutionally apportioned districts is enforced); Perry v.
Del Rio, 67 SW3d 85, 88 (Tex 2001) (when concurrent suits are filed in state and federal court,
Growe requires the federal court to defer to the state process); Brown v. Butterworth, 831 So 2d
683 (Fla Dist Ct App 2002) (same).

"The court declares that, based on the 2000 census data, the
current congressional district boundaries set forth in ORS 188.135
[(2001)] are unconstitutional. Defendants are permanently
enjoined from administering, preparing for, or in any way
permitting the nomination or election of the members of the United
States House of Representatives from the malapportioned districts
that currently exist in Oregon."

"Because the Supreme Court has not spoken to the issue,
we ordinarily would next look to the federal courts to determine
whether they have interpreted the same issue under ERISA as that
presented here. When the federal courts are well-settled on a
specific interpretation, this court may choose to follow that
interpretation, if the underlying reasoning is persuasive. However,
federal court decisions, other than those issued by the Supreme
Court, are not binding on this court."

Defendants also contend, and the trial court agreed, that denying fees here
would effectively reduce the incentive for future similar litigation--or, conversely, induce the
major political parties to work out their differences in the political process rather than pursuing
litigation in which they would be required to bear their own costs. We fail to see why that would
necessarily be so. There is no evidence in this record that supports such an inference--and,
indeed, the parties' vigorous prosecution of this litigation notwithstanding the uncertainty of any
fee recovery strongly suggests that, when the political stakes are sufficiently great, the cost of
litigation is, within reasonable limits, immaterial.